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The European Union from Maastricht to Lisbon: Institutional and Legal Unity out of the Shadows

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The European Union from Maastricht to Lisbon: Institutional and Legal Unity out of the Shadows UvA-DARE (Digital Academic Repository) The European Union from Maastricht to Lisbon: institutional and legal unity out of the shadows Curtin, D.M.; Dekker, I.F. Publication date 2011 Document Version Submitted manuscript Published in The evolution of EU law. - 2nd ed. Link to publication Citation for published version (APA): Curtin, D. M., & Dekker, I. F. (2011). The European Union from Maastricht to Lisbon: institutional and legal unity out of the shadows. In P. Craig, & G. de Búrca (Eds.), The evolution of EU law. - 2nd ed. (pp. 155-186). Oxford University Press. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). 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UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:02 Oct 2021 The European Union from Maastricht to Lisbon Institutional and Legal Unity out of the Shadows Prof. Dr. Deirdre Curtin & Dr. Ige Dekker Amsterdam Centre for European Law and Governance Working Paper Series 2010 - 02 Available for download at www.jur.uva.nl/acelg under the section Publications or at the author’s SSRN page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=608606 April 2010 © Deirdre Curtin & Ige Dekker Address for correspondence Prof. Dr. Deirdre Curtin University of Amsterdam Amsterdam Centre for European Law and Governance P.O. Box 1030 NL – 1000 BA Amsterdam The Netherlands Tel.: +31-20-525-8573 Email: [email protected] Information may be quoted provided the source is stated accurately and clearly. Reproduction for own/internal use is permitted. The European Union from Maastricht to Lisbon ABSTRACT The EU was originally established in the Treaty of Maastricht in 1992 as a formal legal construct not entailing legal unity with the pre-existing EC. Almost 20 years later the Treaty of Lisbon explicitly ordains legal unity, thus catching up with legal and institutional practices, social reality and the perception of citizens and third states. This paper analyses the development of the legal system of the EU from the theoretical perspective of the institutional theory of law. We defend the thesis that already in the Treaty of Maastricht and its legal system an international organization with a unitary but complex legal character was established and has been subsequently operationalized in the institutional legal practices of the Union. We highlight in particular the unitary nature or otherwise of the political executive, both 'frontstage' and 'backstage'. Here too there is a sense of the originally largely invisible becoming structurally more visible. Page 3 Deirdre Curtin & Ige Dekker A. Institutional Sedimentation The European Union is first and foremost a legal construct. As lawyers well know it was formally established in the Treaty of Maastricht that entered into force on 1 November 1993. Its aims were relatively modest: to associate two new sets of issue areas with the existing EC treaties (respectively CFSP and – at that time – CJHA1) without replacing the existing treaties as well as the more radical aim of creating an economic and monetary union. The two new sets of issue areas (‘pillars’) would exist side by side (with a few general overarching provisions). Lawyers and politicians were vehement that there would be little to no “contamination” over and across. A Europe of ‘bits and pieces’ loomed 2 but did not materialize in practice in the manner expected. Our conclusion in the first edition of this book more than ten years ago (1999) was that already only five years later the Union, in general terms, had evolved, as an international organisation, into a legal system with a clear unitary character overarching a lot of – and sometimes very different – ‘layers’ of cooperation and integration. This conclusion was based on an analysis of the Treaty framework as amended by the Treaty of Amsterdam and the legal practices of the institutions of the Union since the Treaty of Maastricht. In the past ten or more years, the evolution of the European Union has gone further, more or less along the lines we originally ‘discovered’ after five years of treaty implementation and legal practices. More than fifteen years after the Treaty of Maastricht, the new Lisbon Treaty (2007) in Article 1 TEU ordains that the Union ‘shall replace and succeed the European Community’. Article 1 TEU does not come out of the blue. It rather reflects institutional realities that had evolved and ripened to such an extent that the formal provisions of the Treaty of Lisbon caught up with ‘living’ and sedimentary practices. On the one hand, the unitary character of the Union seems to be reinforced in terms of, for instance, the partial ‘depillarization’ that has taken place as well as the application of ‘general principles of the Community’ to the whole legal framework of the Union. On the other hand, 1 CFSP is the abbreviation for the ‘Common Foreign and Security Policy’ and is commonly known in shorthand as ‘the second pillar’ since the Treaty of Maastricht. The ‘third pillar’ was initially constituted by CJHA (Cooperation in Justice and Home Affairs) but after certain policy areas (in particular asylum and immigration) were moved to the ‘first pillar’ (EC) in the Treaty of Amsterdam on 1 May 1999, the third pillar was reduced to PJCC (Police and Judicial Cooperation in Criminal Matters). CJHA acts adopted before 1 May 1999 remained in force insofar as they were not replaced by new EC acts. On 1 December 2009 PJCC was subsumed within the EU as a whole; here too PJCC acts adopted before 1 December 2009 remain in force insofar as they are not replaced by new EU acts. 2 DM Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 Common Market Law Review 1, 17–69. Page 4 The European Union from Maastricht to Lisbon the trend of harbouring, within the outer shell of the Union, various autonomous and interlinked entities with their own specific roles and legal regimes has been continued. Rather than thinking in terms of ‘layers’ implying images of vertical and horizontal separation it may be more appropriate to think rather of a looser and less sharply defined ‘marbling’ effect. Legal unity is in any event the order of the day and no longer ‘in disguise’. The new Lisbon Treaty has the advantage that it in one fell swoop improves the systemic visibility and structural clarity of European integration processes. At the same time this catches up with social reality and the perception of citizens and third states already from the early days that the EU constitutes an organizational and legal unity.3 The ‘verdict’ of both the Court of Justice in developing the ‘living’ constitution over time and the framers of inter alia the Treaty of Lisbon is that the legal system – and also the political system – of the European Union as such is developing as an institutional and legal unity. Such a unitary institutional legal system creates spaces for developing a variety of sub-legal systems not only within the Union itself, but also within the separate policy areas, a reality most recently consolidated in the Treaty of Lisbon. We begin by outlining in some detail our theoretical starting point for the analysis of the development of the legal system of the European Union as such, namely the ‘institu- tional theory of law' (paragraph 2). This institutional approach constitutes in our view still the best possible theoretical framework for analyzing a complex modern legal system such as that of the European Union. In applying the core concept of this theory, ‘legal institution', to the Treaty on European Union, we defend the thesis that already in this Treaty and its legal system an international organization with a unitary but complex legal character was established in 1992. Whether this legal ‘picture’ presented by the provisions of the TEU itself, is in fact operationalised in the institutional legal practices of the Union in the context of CFSP, CJHA and PJCC, is the focus of paragraph 3. Finally we make some concluding observations on the nature and refinement of the ‘marbling techniques’ employed both in the Treaty provisions and in their (future) operationalization in practice. 3 See further DM Curtin and IF Dekker, ‘The EU as a ‘Layered’ International Organization: Institutional Unity in Disguise?’ in P Craig and G De Burca (eds), The Evolution of EU Law (Oxford, 1999) 83–137, at 83. Page 5 Deirdre Curtin & Ige Dekker B. The European Union as an international organisation 1. Understanding ‘legal institutions’ (a) Legal institutions Before entering into the legal analysis of the European Union as an international organisation one needs at least some understanding of the legal concept of international organisation and what kind of social phenomena can be qualified as such. The problem is that, as far as matters of theory go, the law of international organisations is still somewhat immature.4 We therefore tried in the earlier version of our contribution to frame a theoretical approach grounded in a general legal approach: the institutional legal theory.5 In order to account for the plurality of legal phenomena, this theory conceives of the legal system as a system of so-called ‘legal institutions’.
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